A New York federal court ordered the recipient of inadvertently produced privileged documents to return them, but permitted use of knowledge learned from them. In Stinson v. City of New York, No. 10 Civ. 4228 (RWS)(S.D.N.Y. Oct. 10, 2014), the City of New York inadvertently produced a copy of the 2013 New York City Police Department Briefing Book and a confidential city council document when it responded to the plaintiff’s document requests. After learning about their production, attorneys for the city requested that the plaintiff return the documents and destroy any copies made of them. Plaintiff’s counsel agreed to treat the information as privileged until otherwise instructed and also agreed to return the documents. However, they agreed to destroy all but one copy of the documents contending they were permitted to keep a copy for their own privilege review. Unable to resolve the dispute, the parties raised the issue with the court.
The court concluded that plaintiff’s counsel was not permitted to retain copies of the documents, but could use information learned from them to oppose the City’s claim of privilege. The court noted that under Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of Evidence 502(b), a court may compel a party to return inadvertently produced privileged documents if the producing party took reasonable steps to prevent disclosure. The court also noted that rules of professional conduct, such as New York Rule of Professional Conduct 4.4(b), obligates attorneys receiving inadvertently produced privileged information to promptly notify the sender so that protective measures may be taken. However, the court noted that an ethics opinion from the Association of the Bar of the City of New York Committee on Professional and Judicial Ethics counsels that lawyers are not ethically barred from using information gleaned from the documents prior to learning that disclosure was unintended.
While the court in Stinson did not address what constitutes reasonable attempts to prevent production of privileged information, it bears noting that failing to take reasonable steps to preserve the confidentiality of client information could also be a violation of an attorney’s ethical obligations. Lawyers cannot simply rely on a clawback agreement to excuse shoddy document review efforts. If inadequate efforts are taken to properly review documents before production, that might limit the ability to seek the return of the documents under Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502.